Opinion
F055592.
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY NEAL GUNTER, Defendant and Appellant.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Wiseman, P.J., Levy, J., and Hill, J.
All further statutory references are to the Penal Code, unless otherwise indicated.
After his motion to suppress was denied, appellant, Anthony Neal Gunter, pled no contest to transportation of heroin (Health & Saf. Code, § 11352, subd. (a)) and admitted allegations that he had two prior convictions within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)).1 On appeal, Gunter contends: 1) the court erred when it denied his motion to suppress; 2) the court abused its discretion when it denied his motion to strike the prior conviction allegations; and 3) his sentence violates the federal and state constitutional ban against cruel and unusual punishment. We will affirm.
FACTS
On March 19, 2005, at approximately 5:30 a.m. Modesto Police Officer Bobby Meredith stopped the car Gunter was driving. During a search of the car, an officer found a small box containing eight pieces of black tar heroin. An additional piece of black tar heroin was found on Gunter during a booking search.
On November 14, 2005, defense counsel filed a motion to suppress alleging only that the search of Gunters car was unlawful because it was the product of an unlawful arrest.
On December 5, 2005, at a hearing on Gunters motion, the parties agreed the court could consider the preliminary hearing transcript in ruling on the motion. The prosecution evidence at this hearing and at the preliminary hearing established that on March 19, 2005, while on patrol, Officer Meredith noticed that the rear turn signal reflectors on a car driven by Gunter did not reflect a red or yellow light as required by Vehicle Code section 25950, subdivision (b)(2). After making a U-turn and getting behind Gunters car, Meredith noticed that Gunters car did not have a rear license plate or registration sticker. Officer Meredith activated his red lights but Gunter did not stop. Officer Meredith activated his emergency lights and siren and Gunter traveled a half-mile before stopping. Meredith and several other officers ordered Gunter out of the car at gunpoint, handcuffed him, and placed him in the back of a patrol car.
Vehicle Code section 25950, in pertinent part, provides: "This section applies to the color of lamps and to any reflector exhibiting or reflecting perceptible light of 0.05 candela or more per foot-candle of incident illumination. Unless provided otherwise, the color of lamps and reflectors upon a vehicle shall be as follows: [¶] . . . [¶] (b) The emitted light from all lamps and the reflected light from all reflectors, visible from the rear of a vehicle, shall be red except as follows: [¶] . . . [¶] (2) Turn signal lamps may show yellow to the rear."
Meredith ran a check on Gunter and discovered that he did not have a California license and had surrendered his Oregon license. An officer then searched Gunters car and found eight individually packaged pieces of tar heroin in a small box in a backpack in the trunk. During a booking search, Meredith found a three-gram piece of tar heroin in his front pants pocket.
During questioning by defense counsel and the court, Meredith explained that after learning Gunter did not have a license, an inventory search was conducted by Officer Laxton and later recorded on a vehicle report form. Not everything in an inventoried vehicle is listed on the inventory sheet because the Modesto Police Departments inventory policy requires officers to only search and record things of importance to the case. Typically, officers search a vehicle for contraband or weapons. The officers conducted an inventory search of Gunters car because Gunter was arrested, he did not have a license, and the vehicle registration had been expired for more than six months, all of which required his car to be towed.
The prosecutor argued that Officer Meredith was justified in stopping Gunters car because of the two Vehicle Code violations. He also argued that the search of the car was justified as a search incident to arresting Gunter for evading a police officer and driving on a suspended license, as an inventory search, and as a search of an instrumentality used in a crime. Defense counsel appeared to argue only that the search could not be justified as a search incident to an arrest because Gunter was arrested when he was handcuffed and at that point the officers lacked probable cause to arrest him. The court denied the motion, ruling that the Vehicle Code violations justified the initial stop, the officers had probable cause to arrest Gunter for driving on a suspended license and evading a police officer, and the arrest and expired registration provided a valid reason for conducting an inventory search of the car.
On August 30, 2006, Gunter pled no contest to transportation of heroin and admitted the allegations that he had two prior convictions within the meaning of the three strikes law. In exchange for his plea, the prosecutor dismissed the remaining count and agreed to move to strike one of Gunters strikes if he provided the location of a methamphetamine lab capable of producing one-quarter to one-half a pound of methamphetamine.
Gunter never provided the district attorney with information regarding the location of a methamphetamine lab. On August 27, 2007, defense counsel filed a Romero motion asking the court to dismiss one or both of Gunters prior strike convictions.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
At Gunters sentencing hearing on September 11, 2007, the court heard Gunters Romero motion. Defense counsel argued that the court should grant the motion because Gunter made a good faith effort to provide information on a methamphetamine lab but his efforts were rebuked by the sheriffs department. In denying the motion, the court noted that Gunters agreement with the district attorney did not provide that he would get consideration just for trying and that he had not provided the required information. The court then stated,
"And so then I have to look at this matter as the agreement hasnt been fulfilled, and I have to look at the situation whether what the proper sentencing is on this matter.
"At this time of this offense, he was on parole for robbery out of the state of Oregon. His prior performances on parole and probation have been very poor. He has a very significant prior criminal record. He doesnt have any significant period of time where he wasnt involved in unlawful activity when he was out on probation or parole.
Gunters probation report indicates that in August 1977, he was convicted of battery and served 45 days in custody. In February 1980, he was convicted of disturbing the peace and sentenced to 7 days in jail. In September 1980, he was convicted of false imprisonment, rape, attempted oral copulation, and the attempted murder of a 14-year-old girl and sentenced to 12 years in prison. In October 1993, he was convicted of disturbing the peace. In 1996, he was convicted of battery, and failing to register. In February 2000, he was convicted of theft I in Oregon and sentenced to 13 months in prison. In August 2001, he was convicted of robbery III in Oregon and sentenced to 16 months in prison. Gunter violated his parole in 1988 and 1989 and was on parole for the robbery offense when he committed the instant offense.
"The priors that he has for these 667 (d) priors are very serious priors. Its not like somebody did something in 1980 and nothing has happened for the next 20 years. Thats not the situation here. His track record continues from that time. He spent a significant period of time in prison for those matters. He spent some time in prison on his robbery case.
"The type of crimes, the sexual strikes that he has here are very serious [in] nature. So I dont see it as a 654 at all. Im sure the victim doesnt share that view either, as a single course of conduct.
"Actually, according to [defense counsels] Points and Authorities from the nature of the facts of the matter, it occurred in two different locations, some of these matters.
"So I look at these matters. I look at the idea of protecting society, looking at his prior criminal history, is there anything in the interest of justice that I should strike the priors?
"And, Mr. Gunter has been a very cordial person to have in court, and he has been very good and cooperative on that, but his courtesy and cooperation with the court doesnt change his prior criminal history.
"Im not going to grant the [Romero] Motion. . . . (Footnote added.)
The court then sentenced Gunter to an indeterminate term of 25 years to life.
DISCUSSION
The Suppression Motion
Gunter contends that the inventory search of the box containing the heroin was unlawful because there was no evidence that the search was conducted pursuant to standardized criteria or an established routine that covered the search of closed containers. Thus, according to Gunter, the court erred when it denied his motion to suppress. We will conclude that Gunter forfeited this issue on appeal.
"In reviewing the denial of a suppression motion, `[w]e defer to the trial courts factual findings, express or implied, where supported by substantial evidence. [Citation.] `In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citation.]" (People v. Pearl (2009) 172 Cal.App.4th 1280, 1287.)
"[W]hen the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion. Of course, if defendants have a specific argument other than the lack of a warrant as to why a warrantless search or seizure was unreasonable, they must specify that argument as part of their motion to suppress and give the prosecution an opportunity to offer evidence on the point. [Citation.] For example, defendants who believe the police failed to comply with the knock-notice requirement of Penal Code section 844 cannot simply bring a motion to suppress alleging a warrantless search or seizure and then wait until the appeal to raise the knock-notice issue. Rather, defendants must specify the knock-notice issue in the course of the trial court proceeding. [Citations.]
"Moreover, once the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate. [Citation.] Otherwise, defendants would not meet their burden under section 1538.5 of specifying why the search or seizure without a warrant was "unreasonable." This specificity requirement does not place the burden of proof on defendants. [Citation.] As noted, the burden of raising an issue is distinct from the burden of proof. The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.] But, if defendants detect a critical gap in the prosecutions proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal.
"In sum, we conclude that under section 1538.5, as in the case of any other motion, defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure. In the interest of efficiency, however, defendants need not guess what justifications the prosecution will argue. Instead, they can wait for the prosecution to present a justification. Moreover, in specifying the inadequacy of the prosecutions justifications, defendants do not have to help the prosecution step-by-step to make its case. The degree of specificity that is appropriate will depend on the legal issue the defendant is raising and the surrounding circumstances. Defendants need only be specific enough to give the prosecution and the court reasonable notice. Defendants cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked." (People v. Williams (1999) 20 Cal.4th 119, 130-131, italics added (Williams).)!
In its moving papers, the defense challenged only the stop of Gunters car and did not challenge the inventory procedure that resulted in the search of the car and the discovery of heroin in a box in Gunters backpack in the trunk. Further, although defense counsel and the court asked the testifying officer regarding the police departments inventory procedures, defense counsel argued only that the search was not justified as a search incident to his arrest because the officers did not have probable cause to arrest him at the point they conducted the search. Since Gunter did not challenge the propriety of the police inventory procedures with respect to the search of closed containers, in accord with Williams, we conclude that he forfeited this issue on appeal.
The Romero Motion
In ruling on a request to dismiss a prior strike, the court must conduct a fact-based inquiry to determine whether the defendant falls outside the spirit of the three strikes law. Relevant factors include the nature of the present offense, defendants prior criminal history, the defendants background, character and prospects, as well as other individualized considerations. (People v. Williams (1998) 17 Cal.4th 148, 161; People v. Philpot (2004) 122 Cal.App.4th 893, 905 (Philpot).) "[A] courts failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) The burden is on the party attacking the sentence to demonstrate that the lower courts decision was "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
Gunter contends the court relied almost exclusively on his recidivism to deny his motion to strike his prior strike convictions. He further contends the court did not consider appropriate factors like the nature and circumstances of his current offense, Gunters drug problem, his long-term employment, the nonviolent and mundane character of his instant offense, and the remoteness of his strike convictions. Thus, according to Gunter, the trial court abused its discretion when it denied his motion to strike the prior conviction allegations. We will reject these contentions.
The court was aware of the circumstances cited by Gunter because they were contained in the probation report which the court read. Further, "[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Consequently, Gunter has not met his burden of showing an abuse of discretion because the fact that the court focused its comments on Gunters criminal history does not mean that it did not also consider other factors. (Ibid.) Thus, we conclude that the court did not abuse its discretion when it denied Gunters motion to strike the prior conviction allegations.
The Cruel and Unusual Punishment Claim
Gunter contends his sentence of 25 years to life is grossly disproportionate to his instant offense and recidivist history and violates the bans against cruel and/or unusual punishment under the United States and California Constitutions. Preliminarily, we conclude that Gunter forfeited these claims by his failure to raise it in the trial court. Nevertheless, even if these issues were properly before us, we would reject them.
Gunter contends his defense counsel preserved this issue because he specifically objected to Gunters sentence "on cruel and unusual punishment grounds." We disagree. Gunters motion to strike the prior conviction allegations and his strike convictions was captioned in part, "MOTION TO DISMISS STRIKE PRIOR MANDATING LIFE IN PRISON ON CRUEL AND UNUSUAL PUNISHMENT." However, he did not argue in the moving papers or at the hearing on the motion that his sentence was cruel and unusual under the state or federal constitutions.
The Federal Claim
The Eighth Amendment to the United States Constitution provides that there "shall not be . . . cruel and unusual punishments inflicted." The prohibition against cruel and unusual punishment applies to the states as incorporated in the due process clause of the Fourteenth Amendment. (Robinson v. California (1962) 370 U.S. 660, 675 (conc. opn. of Douglas, J.).)
The United States Supreme Court has repeatedly held that the imposition of a lengthy prison sentence on a repeat offender imposed under a recidivist statute does not constitute cruel and unusual punishment. (Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin); Hutto v. Davis (1982) 454 U.S. 370 (Hutto); Rummel v. Estelle (1980) 445 U.S. 263 (Rummel).) In noncapital cases, the United States Supreme Court has consistently deferred to state Legislatures to determine the appropriate length of prison sentences. (Rummel, supra, at p. 274.) Severe sentences imposed on repeat offenders promote a legitimate state interest in safeguarding society from crime. (Id. at p. 284.)
In Rummel, the United States Supreme Court held it was not cruel and unusual to impose a life sentence under a Texas recidivist statute where the defendant was convicted of obtaining $120.75 by false pretenses. (Rummel, supra, 445 U.S. at p. 266.) The defendant had previously been convicted of passing a forged check in the amount of $28.36 and of fraudulently using a credit card to obtain $80 worth of goods or services. (Id. at pp. 265-266.) In Hutto, the United States Supreme Court rejected an Eighth Amendment challenge to a 40-year prison term and a $20,000 fine for possessing and distributing nine ounces of marijuana. (Hutto, supra, 454 U.S. at pp. 371-372.) In Harmelin, the United States Supreme Court upheld a sentence of life without possibility of parole for possessing 672 grams of cocaine. (Harmelin, supra, 501 U.S. at pp. 961, 996.)
In Ewing v. California (2003) 538 U.S. 11 (Ewing), the United States Supreme Court upheld a 25-year-to-life sentence under the California three strikes law for a defendant who shoplifted golf clubs worth about $1,200 with prior burglary and robbery convictions. The court confirmed that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences, but that successful challenges outside the context of capital punishment are exceedingly rare. (Id. at pp. 20-21, citing Rummel, supra, 445 U.S. at pp. 271-272.) In a companion case, Lockyer v. Andrade (2003) 538 U.S. 63 (Andrade), the Supreme Court upheld two consecutive 25-year-to-life sentences under the three strikes law for a defendant who stole $150 worth of videotapes with three prior convictions for first degree burglary.
Gunters case is well within the parameters set by Ewing and Andrade. He had prior strike convictions, an extensive criminal background, and numerous periods of incarceration in county jails and state prison. (See Andrade, supra, 538 U.S. at pp. 66-67; Ewing, supra, 538 U.S. at pp. 17-20, 28.) Gunters third-strike sentence was not grossly disproportionate to the crime of transportation of heroin. Although he was allowed to plead to transportation of heroin, the eight bindles found in his back pack and the additional bindle found in his pants pocket indicate that he possessed the heroin for sale and his substantive offense was far more serious than the theft of golf clubs underlying Ewing or the theft of videotapes underlying Andrade. As the Supreme Court observed in Ewing, Gunters sentence was fully "justified by the States public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ewing, supra, 538 U.S. at pp. 29-30.)
The State Claim
Article I, section 17 of the California Constitution independently provides: "Cruel or unusual punishment may not be inflicted or excessive fines imposed." Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. A tripartite test has been established to determine whether a penalty offends the constitutional prohibition against cruel or unusual punishment. First, courts examine the nature of the offense and the offender, with particular regard to the degree of danger both present to society. Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. In undertaking this three-part analysis, reviewing courts consider the totality of the circumstances surrounding the commission of the offense. (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.) Defining crime and determining punishment are matters uniquely legislative in nature and rest within the sole discretion of the Legislature. Courts will denounce a punishment as unusual only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances. (People v. Lewis (1993) 21 Cal.App.4th 243, 251.) Whether a punishment is cruel or unusual is a question of law for the appellate court and the underlying disputed facts must be viewed in the light most favorable to the judgment. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
Gunter clearly fails the first prong of the tripartite test. His record of criminal behavior began in 1977 when he was a teenager. His criminal conduct continued for more than two decades and was interrupted only by periods of confinement. His record reflects numerous serious felonies and he repeatedly re-offended upon release from custody. His current offense entailed the possession of heroin for sale and closely followed his conviction in Oregon for robbery. The trial court properly based Gunters sentence on his current crime, recidivist behavior, and clear threat to public safety.
With respect to the second prong of the tripartite test, Gunter argues that his penalty is exceeded only by a sentence of life without the possibility of parole or death imposed for first-degree murder (§ 190, subd. (a)), while it is substantially greater than the penalties for far more serious or violent felonies (§ 667.5, subd. (c)) such as second degree murder, punishable by 15 years to life (§§ 189, 190, subd. (a)) and voluntary manslaughter, punishable by three, six, or 11 years (§§ 192, subd. (a), 193, subd. (a)) to name a few.
Gunters contention must be rejected. This step in the tripartite process is inapposite to three strikes sentencing. It is defendants recidivism, in combination with current crimes, that places him or her under the three strikes law. The Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals. Thus, it is illogical to compare Gunters punishment for his "offense" which includes his recidivist behavior to the punishment of others who have committed more serious crimes but have not qualified as repeat felons. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433, citing People v. Ayon (1996) 46 Cal.App.4th 385, 400, disapproved on another point in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
The third prong of the tripartite process is interjurisdictional comparison, i.e., a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision. (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) Gunter argues that the "three strikes" laws in other states are drafted more narrowly than that in California and generally target serious violent offenders and that only in two other states besides California can the third strike be any felony. Thus, according to Gunter, "the inescapable conclusion is that the punishment under the three strikes law is disproportionate when compared to other jurisdictions." The fact that Californias punishment scheme is among the most extreme does not lead to the conclusion that it is unconstitutionally cruel or unusual. California is not required to "`march in lockstep" with other states in formulating its Penal Code. Nor is California constitutionally required to conform its Penal Code to that of a sister state with the lowest penalties. Otherwise, California could never take the toughest stance against recidivists. (People v. Romero, supra, 99 Cal.App.4th at p. 1433, citing People v. Martinez (1999) 71 Cal. App.4th 1502, 1516.)
Gunter has failed to show that his punishment offends fundamental notions of human dignity or shocks the conscience. Therefore, we conclude that his sentence does not violate the prohibition against cruel or unusual punishment as set forth in the California Constitution. (See People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433.)
DISPOSITION
The judgment is affirmed.